Verbal Strategies from Kosovo to Crimea. Part One

How the Kremlin uses the language of international law as a foreign policy tool

Russia’s annexation of Crimea in 2014 has become a turning point for the Kremlin’s relationship with the West. While inside Russia the event is largely viewed as a “restoration of historical justice,” in the West it is perceived as a violation of Ukraine’s sovereignty and territorial integrity and essentially as the first rewriting of Europe’s borders since World War II. As Russia’s belligerent behavior in the international arena continues to raise concerns, Russia analyst Thomas Hodson investigates the Kremlin’s attempts to manipulate the language of international law to justify its actions.

Author’s note. This article is based on a dissertation that I wrote for a Master’s degree in Russian and Post-Soviet Politics at the School of Slavonic and Eastern European Studies, University College London, in 2017. The purpose was to examine the Kremlin’s manipulation of the language of international law and desire to equate—both legally and morally—its actions in Georgia, Ukraine, and elsewhere with Western involvement in Kosovo, Iraq, and Libya. A key theme was the notional divide between the “native speakers” of international law, who make the rules, and the “non-native speakers”—with Russia in the latter camp yet striving to join the former. This abridged version looks at how the Kremlin developed a verbal strategy that drew parallels between the independence of Kosovo and the annexation of Crimea. In the process, Moscow revived the Cold War practice of simultaneously criticizing and co-opting the other side’s rhetoric, and staked a claim to “native speaker” status in international law.

Russia as a “non-native” speaker of international law

Over the past decade, Russia has waged war against Georgia, annexed Crimea and invaded eastern Ukraine. These events were condemned as gross violations of international law by the global community. Yet to the Kremlin, they were nothing of the sort, but simply the logical consequence of “precedents” created by Moscow’s accusers themselves. Two of these alleged precedents relate to Kosovo: the bombing of Serb targets in 1999 and Kosovar independence in 2008.

In this article, the Kremlin’s rationale is analyzed from a legal-linguistic angle. By examining Moscow’s use of the language of international law, the article attempts to show how the Russian government became adept at cloaking geopolitical aspirations in legal language with specific reference to Western actions. In doing so, the Kremlin has made international law a component of the wider information war currently being waged.

To help explain Moscow’s behavior in the past decade, I borrow and expand upon a metaphor from a 2014 academic article by Anna Dolidze entitled The Non-Native Speakers of International Law: the Case of Russia. In it, Dolidze introduces the concept of “native” and “non-native” speakers of international law, with Russia—in light of its Soviet past—falling into the latter category (alongside, inter alia, China and Iran). “Non-native speakers,” it is proposed, approach international law from two perspectives: that of “disaffected foreigner” with an inferiority complex, and that of “empowered multilingual speaker” able to operate fluently and challenge “native speakers” on an equal footing. Today’s collective “native speaker” of international law is the West, due to its economic, political and linguistic dominance of the past few centuries, although that dominance is being tested. Provided the metaphor is not overstretched, this dichotomy serves as a useful guideline for investigation.

Law as language

A successful language-learning technique is to imitate native speakers until fluency is achieved. During the learning phase, non-native speakers of a language make mistakes, which native speakers feel entitled to correct. If, however, a native speaker makes a mistake, such usage is considered idiomatic and correct in the circumstances. Therefore, part of the metaphor of international law as language is that “non-native speakers” are those countries that are punished or “corrected” for perceived violations of international law, while “native speakers” are not (hence, for instance, the lack of sanctions against members of the “coalition of the willing” for the “invasion” of Iraq in 2003, since it was “correct in the circumstances” to overthrow Saddam Hussein).

In law, as in language, the distinction between right and wrong is often a matter of perspective. In both law and language, usage and application are what ultimately define “correctness.” British grammarians, for instance, may grumble about “Americanisms,” but if such idioms and speech patterns are used by the majority of native speakers of English, they are, by definition, correct. The Kremlin utilizes a similar scenario in international law. The Western “grammarians” of international law may describe Moscow’s actions in Georgia and Ukraine as “wrong,” but in response the Kremlin points to Kosovo. Since the “native speakers” of international law normalized secession by declaring Kosovo independent—and altered the “grammar” of international law in the process— the Kremlin’s subsequent actions were not a violation of the law, but the application of a new legal “idiom” created by the native speakers themselves. In the case of Crimea, moreover, the newly emboldened Kremlin went beyond secession to full-blown annexation, laying down its own “idiom” in the process.

Russia and Kosovo

Russian discontent with the international legal playing field and its “non-native speaker” status stems from the late 1990s. Its inability to prevent NATO’s campaign against the former Yugoslavia (known as Operation Allied Force (OAF)) was perceived by the Kremlin as a political failure. OAF marked the culmination of a decade of frustration for Russian foreign policy, following the tacit agreement (never codified in treaty form) between Mikhail Gorbachev and Western leaders that, in return for accepting German reunification, Soviet (and Russian) special interests in Eastern Europe would be recognized.

For Moscow, the situation in Kosovo was broadly analogous to its own separatist troubles in Chechnya, with NATO intervention in Kosovo being seen as a potential, albeit unlikely, precursor of Western interference over alleged atrocities in Grozny.[1] And it is here that we observe post-Soviet Russia’s first “imitation” of Western actions. A few months after OAF, the Russian military launched a second offensive in Chechnya, involving an air attack that clearly echoed NATO’s bombing campaign. Kosovo influenced Moscow’s tactics in Chechnya by making force “less unjustifiable.”[2] Russia, a “non-native speaker” of international law, was learning to copy the West’s “violations,” while presenting its own actions as lawful within the new normative framework created by the latter. Post-9/11, Moscow went further, readily applying the West’s “war on terror” rhetoric to the North Caucasus.

Then in February 2008, after years of thorny relations with Serbia and a lengthy negotiation process, Kosovo unilaterally declared independence with the backing of both the United States and the European Union. The official Kremlin line was that Kosovo’s proclamation was a breach of international law, for it was carried out without a UN Security Council resolution. The declaration of independence was preceded, in June 2007, by a statement from Vladimir Putin: “We advocate dialogue and the implementation of international law, which implies respect for the territorial integrity of states. If we decide to give preference to the principle of ethnic self-determination over territorial integrity, it should be done everywhere in the world, particularly in South Ossetia, Abkhazia and Transdnistria. In the West, such a solution would unleash separatisms in Europe. Look at Scotland, Catalonia…”

Clearly, even before Kosovo’s declaration, the Russian leadership was formulating its argument in terms of the inherent contradiction at the heart of international law: the principle of territorial integrity versus the right to self-determination. Independence for Kosovo would, in Moscow’s view, set a precedent in favor of all territories seeking likewise. The West’s alleged violation of the principle of territorial integrity in respect of Serbia would shift the normative balance in favor of self-determination. No surprise, then, that Kosovar independence was readily cited by Moscow to justify both the separation of South Ossetia and Abkhazia from Georgia, and the annexation of Crimea.

South Ossetia and Abkhazia

Having championed territorial integrity for Serbia, the Russian government did an about-face in respect of Georgia in August 2008. The rhetoric employed by the Kremlin throughout the conflict, known as the Five-Day War, is pertinent, for it echoes almost precisely NATO’s rationale for OAF in 1999. Moscow’s language in justifying its actions against Georgia deliberately and consciously evoked the Kosovo scenario. Although Kosovo had little to do with the geopolitical necessity of thwarting Georgian membership of NATO, it provided a template for Moscow to pursue a key foreign policy objective. The Kremlin acted out of political reasons, rationalizing its behavior in the language of international law.

A crucial component of Moscow’s strategy was to create moral equivalence. This was particularly evident in the language employed regarding expulsion and genocide. It was an attempt by a “non-native speaker” of international law to ape the terminology of the “native-speaker” lawmakers. To create the required analogy, in August 2008 the Russian Foreign Ministry claimed that over 2,000 people in South Ossetia had been killed and more than 30,000 driven from their homes, clearly evoking NATO’s language. The inflated casualty figures point to Moscow’s desire to categorize the events as genocide, thus equating it with Kosovo. But Moscow went beyond mere equivalence. Knowing that in 1999 NATO had been unable to cite self-defense under Article 51 of the UN Charter, the Kremlin took the opportunity to do precisely that: under the 2002 Russian Law on Citizenship, many residents in the two Georgian enclaves had acquired Russian citizenship, allowing Moscow to claim that it had the “responsibility to protect” its nationals, usurping the principle of R2P, which had arisen in the wake of real genocides, one of which was in Kosovo. The Kremlin was seeking to supplement moral equivalence with “legal superiority.”

To apply the metaphor of international law as language, the declaration of independence of South Ossetia and Abkhazia marks the point when Russia morphed from a “disgruntled non-native speaker” into a “multilingual speaker” able to “code switch”—that is, to swap between different rules and norms depending on the situation, with no contradiction (at least in its own mind). For Moscow, the “old” rules of the game, namely the priority of territorial integrity, were still very much in place in respect of Kosovo, for these rules had been unilaterally “violated” by the West. But the Kremlin considered itself justified in applying the “new” rules of the game to Georgia, for here the “Kosovo precedent” had created a new norm in favor of self-determination. There were now two parallel normative systems, and Russia, as a global power (or derzhava, from the Russian word derzhat’, “to hold”), was entitled to apply either according to its national interests. The unipolar era, which Vladimir Putin had criticized so vehemently in his 2007 Munich speech, was effectively over.

References:

[1] See for instance: Collision Course: NATO, Russia, and Kosovo by John Norris (Praeger, 2005), p.15

[2]Russia, the West, and Military Intervention by Roy Allison (OUP, 2013), p.56

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